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The Evolution of Disability Rights Litigation

(and some stories)

David Ferleger, Esq. 1

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In the Supreme Court: The Constitutional Right to Community Services

  • David Ferleger, "The Constitutional Right to Community Services." 26 Ga. State Univ. L. Rev. 763 (2010)
  • Halderman v. Pennhurst State School and Hospital, 465 U.S. 89 (1984); 451 U.S. 1 (1981);  446 F.Supp. 1295 (E.D. Pa. 1978) (original decision)
  • Olmstead v. L.C., 527 U.S. 581 (1999)
  • Jackson v. Indiana, 406 U.S. 715 (1972)

[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.2

Pennhurst provides confinement and isolation, the antithesis of habilitation.3

Institutions, by their very structure a closed and segregated society founded on obsolete custodial models[,] can rarely normalize and habilitate the "mentally retarded citizen" to the extent of community programs created and modeled upon the normalization and developmental approach components of habilitation.4

Twenty-one years before the Supreme Court in Olmstead v. L.C. ("Olmstead")5 held that unjustified institutionalization is discrimination forbidden by the Americans with Disabilities Act, a court issued the landmark decision that all institutionalization of people with developmental disabilities violates the United States Constitution and that states have an obligation to provide community services to the institutionalized. Halderman v. Pennhurst State School and Hospital ("Pennhurst").6 The first quotation above is from Olmstead in 1999 and the second two are from Pennhurst in 1978.

In this presentation, I describe the basis for a constitutional right to community services, one not yet recognized by the Supreme Court, but with a firm foundation in prior decisions of the Court. The material below is edited and reduced from a much broader analysis in Ferleger, "The Constitutional Right to Community Services," 26 Ga. St. U. L. Rev. 763-801 ( 2010).

The Supreme Court has long recognized that civil confinement entails a "massive curtailment of liberty."7 The only permissible justifications for committing people with mental disabilties are: (1) danger to the individual, (2) danger to others, and (3) need for treatment.8 The Court enunciated the following principle in Jackson v. Indiana, striking down a state law that permitted the state to confine indefinitely a "mentally deficient deaf mute" adjudged incompetent to stand trial: "At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."9

Jackson's "nature, duration and purpose" criteria have become the touchstone (often unacknowledged) for the development of procedural and substantive due process, and for equal protection safeguards of the rights of the institutionalized.

At its foundation, the "nature, duration and purpose" principles support the notion that there is a constitutional right to community services. That right is virtually never discussed since the adoption in 1990 of the Americans with Disabilities Act and the Supreme Court's landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), that the ADA itself forbids unnecessary institutionalization. Because there are important limitations in the Olmstead/ADA right – which are beyond the scope of this presentation but which I have discussed elsewhere10 – it is useful to consider the constitutional underpinnings of such a right.

Substantive Due Process

Until its indirect evisceration in the Supreme Court's decisions in Youngberg v. Romeo (on Due Process) and Pennhurst State School and Hospital v. Halderman (on the Developmental Disabilties Assistance and Bill of Rights Act), "the concept of the least restrictive alternative – the idea that restrictivity of confinement can and must be calibrated and evaluated – " had "remained one of the core staples of mental disability law."11 Youngberg focused on institutional treatment rights, and Pennhurst rejected a statutory community services right.12  There followed a line of cases in the mid- to late 1980s rejecting the "least restrictive" basis for community services.13

What has survived the disfavor of the least restrictive analysis, however, is robust law on other grounds. Two conceptual strands form the basis for the substantive due process right to treatment for the institutionalized. Although they are intertwined, they each have been considered to provide independent support for the right. The quid pro quo approach considers that the massive curtailment of liberty occasioned by involuntary civil institutionalization,  for which criminal justice procedural safeguards are absent, cannot be justified  unless the state gives to the institutionalized person something in exchange for the loss of liberty.  That "something" is habilitation.  The parens patriae approach is that due process is violated the state fails to provide treatment to a person dependent on the state. There is no need for detailed analysis here of whether the right to treatment arises under the quid pro quo or the parens patriae theory.14 

The quid pro quo position finds support in the Supreme Court's ruling in O'Connor v. Donadlson that "a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends."15 Absent treatment (or whatever the Court meant by "more"), the deprivation of liberty is unjustified. Courts have applied this rationale to confinement of people with developmental disabilties.16

For many individuals with intellectual disabilities in public institutions, the judgment exercised by the institution's professionals themselves is that the confinement is not necessary and that community services would be beneficial. Therefore, not surprisingly, Youngberg has been extended to embrace a due process right to community services.17

On the other hand, some courts (mostly before Olmstead) have declared that residents of state institutions for people with developmental disabilties "have no right to community placement."18 Virtually in the same breath, however, "no-right" courts have acknowledged that state decisions which deprive individuals of liberty, which result in their institutionalization, are subject to scrutiny under Youngberg and due process principles; confinement must be "rational."19 We see in these decisions a profound judicial disquiet with a constitutional fabric which would uphold use of governmental power to involuntarily confine people when it is acknowledged that confinement is not justified by considerations of adequate care and treatment. In considering the Youngberg balance between a person's liberty interests and the state's interests, Olmstead's recognition that the ADA forbids unjustified institutionalization must be placed in the balance.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated individuals should be treated similarly. When state law or practice do not employ suspect classifications or impinge on fundamental rights, they are upheld when they are rationally related to a legitimate public purpose.20 

When the government acts on the basis of a suspect classification or affecting a fundamental interest, the traditional rational basis standard is abandoned in favor of what has been called "strict scrutiny." Strict scrutiny admits of little or no presumption of validity of the challenged state action.

An intermediate level of scrutiny is afforded classifications involving "quasi-suspect" classes  such as gender and illegitimacy.21 To withstand constitutional challenge, a classification disfavoring a quasi-suspect class must "serve important governmental objectives and must be substantially related to achievement of those objectives."22

I advance two arguments. First, I propose that forcible and unnecessary institutionalization of people with intellectual disabilities is irrational and therefore unconstitutional under the traditional equal protection framework.  Second, I conclude that a class definition for equal protection purposes narrower than all "people with disabilities" is subject to at least the intermediate degree of scrutiny. Rather than define the protected group as "the disabled" generically, one would focus on those among the disabled who are maximally deprived of liberty and who are a close fit to the "special condition" class described in footnote 4 of United States v. Carolene Products Co,23 and its "strict scrutiny" progeny. This approach would bring to bear the protections of the suspect or quasi-suspect class analysis on the discrimination inherent in institutionalization.

Conclusion

The involuntary institutionalization of people with intellectual disabilities is unconstitutional on due process and equal protection grounds where it is unjustified in the sense recognized in Olmstead, that is, when they can "handle and benefit from" community services based on professional assessment. Periodic review of each person's need for institutionalization is required.

Restoration of the constitutional dimension to the conversation encourages reasoned discussion of both the opportunities and the deficits in the Olmstead statutory approach. Recognition of the constitutional right to community services is an opening to move further toward an end to unjustified institutionalization.

Both the Constitution and the Americans with Disabilities Act advance the integration of people with disabilities in our society.  The constitutional scholar Jacobus tenBroek urged "integrationalism." He "called for the full and equal participation in society of persons with disabilities."24

"Without that right, that policy, that world, it is not living."25

Note:  The discussion here selects "highlight" cases or other authorities to describe principles relevant to understanding the legal right which is the subject of this short presentation. This is a starting point for in depth review, not the end point. 

1  David Ferleger, Esq. 413 Johnson Street, Suite 203, Jenkintown, PA 19046. 215 887 0123. Email: david@ferleger.com. http://www.ferleger.com.

2 Olmstead v. J.C., 527 U.S. 581, 600 (1999).

3 Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295, 1312 (E.D. Pa. 1978) (subsequent history at n. 5 infra).

4 Pennhurst, 446 F.Supp. at 1317 (E.D. Pa. 1978).

5  527 U.S. 581 (1999).

6 446 F.Supp. 1295 (E.D. Pa. 1978). The subsequent history of the case includes two Supreme Court decisions and numerous other rulings. See 465 U.S. 89 (1984); 451 U.S. 1 (1981); 673 F.2d 645 (3d Cir. 1982) (on remand); 612 F.2d 84 (3d Cir. 1979); 49 F.3d 939 (3rd Cir. 1995); 901  F. 2d 311 (3d Cir. 1990); 446 F.Supp. 1295 (E.D. Pa. 1977) (on liability and implementation order), 451 F.Supp. 233 (E.D. Pa. 1978); 855 F.Supp. 747 (E.D. Pa. 1994); 855 F.Supp. 733 (E.D. Pa. 1994); 154 F.R.D. 594 (E.D. Pa. 1994); 834 F.Supp. 757 (E.D. Pa. 1993); 784 F. Supp. (E.D.Pa. 1992); 1987 U.S. Dist. Lexis 11020 (1987); 610 F. Supp. 1221 (D.C. Pa. 1985); 97 F.R.D. 522 (D.C. Pa. 1983); 673 F.2d 645 (3d Cir. 1983); 566 F.Supp. 185 (E.D. Pa. 1983); 555 F.Supp. 835 (E.D. Pa. 1983); 555 F.Supp. 1144 (E.D. Pa. 1983); 707 F.2d 702 (3d Cir. 1983); 567 F. Supp. 1504 (D.C. Pa. 1983); 673 F.2d 647 (3d Cir. 1982); 673 F.2d 628 (3d Cir. 1982); 545 F.Supp. 410 (D.C. Pa. 1982); 555 F.Supp. 1142 (E.D. Pa. 1982); 835 F. Supp. 1138 (E.D. Pa. 1982); 559 F. Supp. 153 (E.D. Pa. 1982); 542 F. Supp. 619 (E. D. Pa. 1982); 536 F. Supp. 522 (E.D. Pa. 1982); 533 F. Supp. 668 (E.D. Pa. 1982); 533 F.Supp. 649 (E.D. Pa. 1982); 533 F. Supp. 641 (E.D. Pa. 1982); 533 F. Supp. 661 (E.D. Pa. 1982); 526 F. Supp. 428 (E.D. Pa. 1981); 526 F. Supp. 423 (E.D. Pa. 1981); 526 F. Supp. 414 (E.D. Pa. 1981); 526 F. Supp. 409 (E.D. Pa. 1981); 533 F. Supp. 631 (E.D. Pa. 1981); 612 F.2d 84 (3d Cir. 1979); 612 F.2d 131 (3d Cir. 1979); 452 F. Supp. 867 (E.D. Pa. 1978); 451 F. Supp. 233 (E.D. Pa. 1978); 446 F. Supp. 1295 (E.D. Pa. 1978); 899 F.Supp. 209 (E.D. Pa. 1995); 725 F. Supp. 861 (E.D. Pa. 1989).

For first-hand analysis of the case, see David Ferleger & Patrice McGuire, Rights and Dignity: The Supreme Court, Congress and People With Disabilities After Pennhurst, 5 W.New Eng.L.Rev. 327 (1983); David Ferleger, Anti-Institutionalization and the Supreme Court, 14 Rutgers L.Rev. 595 (1983); David Ferleger & Penelope A. Boyd, Anti-Institutionalization: The Promise of the Pennhurst Case, 31 Stan.L.Rev. 717 (1979); David Ferleger, "The Right to Community Care for the Retarded," in Flynn & Nitsch, eds., Normalization, Social Integration and Community Services (1980).

7  Humphrey v. Cady, 405 U.S. 504, 509 (1972); Vitek v. Jones, 445 U.S. 480, 491-492 (1980) (commitment to mental hospital entails " 'a massive curtailment of liberty,' " and requires due process protection); Parham v. J.R., 442 U.S. 584,  600 (1979) (there is a "substantial liberty interest in not being confined unnecessarily for medical treatment"); Addington v. Texas, 441 U.S. 418, 425 (1979) ("[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection"); Jackson v. Indiana, 406 U.S. 715, 738 (1972); Zinermon v. Burch, 494 U.S. 113 (1990).

8 Jackson v. Indiana, 406 U.S. 715, 737, (1972).

9 Jackson v. Indiana, 406 U.S. 715, 738 (1972). See also McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249-50 (1972).

10 CGA ARTICLE

11 Michael L. Perlin, "Their Promises of Paradise": Will Olmstead V. L.C. Resuscitate the Constitutional "Least Restrictive Alternative" Principle in Mental Disability Law?,  37 Hous. L. Rev. 999, 1000 (2000). For a review of the 1970s and early 1980s community placement court decisions, see id. at 1022-1025. See Dixon v. Weinberger, 405 F. Supp. 974, 979-80 (D.D.C. 1975) (mental hospital must plan for treatment of plaintiff patients in "suitable residential facilities under the least restrictive [alternative] conditions"); David Ferleger, Anti-Institutionalization and the Supreme Court, 14 Rutgers L.J. 595, 598 & n.12 (1983) (judicial action has provided thousands with more humane services in community facilities); Melissa G. Warren & Robert R. Moon, Dixon: In the Absence of Political Will, Carry a Big Stick, 18 Law & Psychol. Rev. 329, 330 (1994) (mental health de-institutionalization order); Brewster v. Dukakis, 544 F. Supp. 1069 (D. Mass. 1982) (mem.), aff'd as modified, 786 F.2d 16 (1st Cir. 1986) (mental health deinstitutionalization order).

12 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18 (nothing in the Developmental Disabilities Act suggests  Congress intended to require the states to provide "'appropriate treatment"' in the "'least restrictive environment"' to citizens with developmental disabilities).

13 See Lelsz v. Kavanagh, 807 F.2d 1243, 1249, 1251 (5th Cir.1987); Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1249 (2d Cir.1984) (Societyfor Good Will I); Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir.1983); see Jackson v. Fort Stanton Hosp. & Training Sch., 964 F.2d 980, 992 (10th Cir.1992) (noting that "[c]ommunity placement is only one of various possible ways in which the state may comply with its constitutional obligations to adequately care for and train involuntarily committed individuals."); Hanson ex rel. Hanson v. Clarke County, Iowa, 867 F.2d 1115, 1120 (8th Cir.1989) (denying plaintiff's contention that she had right to funding for placement in the "least restrictive environment consistent with qualified professional judgment."); Conner v. Branstad, 839 F.Supp. 1346, 1351 (S.D. Iowa 1993); Gieseking v. Schafer, 672 F.Supp. 1249 (W.D. Mo. 1987).

14 See Mason & Menolascino, The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L.Rev. 124 (1976); Herman, Barriers to Providing Effective Treatment: A Critique of Revisions in Procedural, Substantive, and Dispositional Criteria in Involuntary Civil Commitment, 39 Vand.L.Rev. 83, 85 (1986).

15 O'Connor v. Donaldson, 422 U.S. 563, 576 (1975).

16 See United States v. Jackson, 179 U.S.App.D.C. 375, 385, 553 F.2d 109, 119 (1976); Welsch v. Likins, 373 F.Supp. 487, 496 (D. Minn. 1974) (relying on Robinson v. California, 370 U.S. 660 (1962), for holding that if plaintiffs are subject to "detention for mere illness without a curative program," their confinement is unconstitutional).

17 Clark v. Cohen, 794 F.2d 79 (3rd Cir.  1986); Homeward Bound, Inc., v. HissomMemorial Center, 1987 WL 27104, *19 (N.D. Okla., July 24, 1987) ("Freedom from bodily restraint includes the right to be free from confinement in an institution where such confinement is shown on a factual basis to be unnecessary.").

18 Messier v. Southbury Training School, 562 F.Supp.2d 294, 319 (D. Conn. 2008); Society for Good Will, 737 F.2d 1239, 1249; Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir.1983) and Garrity v. Gallen, 522 F.Supp. 171, 237-39 (D.N.H.1981)). Pre-Youngberg, there were cases which did not appreciate the significance of the liberty deprivation. E.g., Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 488 (D. N. D. 1982) (questioning whether institutionalization "compromises a fundamental liberty interest" and suggesting that "the state may have a compelling interest in just safekeeping -- rather than habilitating -- mentally retarded persons").

19 "Community placement decisions are, however, subject to scrutiny under Youngberg. Id. Like any other decision to place restraints on a patient's freedom, the decision to keep a resident in an institution instead of placing the resident in a community setting must be "a rational decision based on professional judgment." Messier v. Southbury Training School, 562 F.Supp.2d 294, 319 (D. Conn. 2008), quoting Society for Good Will, 737 F.2d 1239, 1249 (2nd Cir.1984). As one court put it, if "a patient were being held against his will contrary to all the medical evidence and expert medical opinion, there would clearly be a constitutional violation." Hughes v. Cuomo, 862 F.Supp. 34, 37 (W.D.N.Y.1994).

Some courts flatly disagreed pre-Olmstead that there is any due process right to community services. S.H. v. Edwards, 860 F.2d 1045, 1051-52 (11th Cir.1988) (Constitution does not bestow any "right" to receive state-provided mental health treatment in a community setting rather than in an institutional one);  Society for Good Willto Retarded Children v. Cuomo, 737 F.2d 1239, 1247 (2nd Cir.1984) ("mere residence in an institution or school for the 'mentally retarded', without more, does not violate due process.").

20  Plyler v. Doe, 457 U.S. 202, 216, (1982); Hodel v. Indiana, 452 U.S. 314 (1981); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, on remand, 475 F.Supp. 109 (1979), aff'd 445 U.S. 901(1980); City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985); Schweiker v. Wilson, 450 U.S. 221 (1981).

21 Craig v. Boren, 429 U.S. 190, 197 (1976) (acknowledgment of middle tier scrutiny).

22 Craig v. Boren, 429 U.S. 190, 197 (1976).

23 United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 ("whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.").

24 Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 Cal. L. Rev. 841, 843 (1966) (defining the policy of integrationism as "a policy entitling the disabled to full participation in the life of the community and encouraging and enabling them to do so....").

25 Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 Cal. L. Rev. 841, 918 (1966), quoted in Peter Blanck, The Right to Live in the World: Disability Yesterday, Today, and Tomorrow," 13 Tex. J. on C.L. & C.R. 367, 401 (2008),

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